01 December 2010

Defining Controversial Actions

I’ve been driving for about three decades. During that time I have resided and been licensed to drive in two jurisdictions, and have driven in three countries. I pretty much know what the rules are: drive within the speed limits, stop when encountering a school bus with flashing red lights, and so on. Some of the rules have evolved over time. For example, when I started driving there was no ban on handheld mobile phones. Of course there were no mobile phones. And if I want to drive in another country, it’s not so difficult to find our how their rules might differ from the ones I am familiar with. Which is a good thing, because I generally want to obey traffic rules, and it’s easiest to obey rules I know and understand.

The draft Anglican Covenant provides for a process that might lead to “relational consequences” (about which more in a later post) for a Province which has taken a “controversial action.” The question is, what exactly is a controversial action?

Unfortunately, the Covenant gives no guidance on that question, so we are left to speculate.

Section 4.2.3 states that “when questions arise relating to the meaning of the Covenant, or about the compatibility of an action by a covenanting Church with the Covenant, it is the duty of each covenanting Church to seek to live out the commitments of Section 3.2. Such questions may be raised by a Church itself, another covenanting Church or the Instruments of Communion.” So a controversial action is one about which a question has arisen.

But what might give rise to a question? And what would be the mechanism to raise questions? And to whom should questions be referred?

In the history of Anglicanism there have been a number of questions of controversy, some of which have led to schisms. Questions have arisen about the nature of a cleric’s oath to the sovereign (the non-Juror crisis), about whether slavery ought to be abolished or retained, about liturgical vestments and rituals, about remarriage after divorce, about the ordination of women, about liturgical renewal (in both the 16th and 20th centuries), and about the place of sexual minorities in the Church. This is neither an exhaustive nor a closed list of controversies. There have been others and there will be more in the future, the details of which I cannot predict. Every age, it seems, has its own matters of controversy. What remains unchangeable is the willingness of Anglicans to argue, and sometimes, sadly, to break from the Church.

The trouble with the Covenant is that it is so vague about “controversial actions”, we can only know after the fact that an action taken by a Province - perhaps after years of study, discussion and debate - is a “controversial action” within the terms of the Covenant. For example, a Province could debate the question of remarriage after divorce for many years (76 years in Canada’s case) and then having implemented a change in practice that change could be deemed “controversial.” Part of me wants to say “Duh” because if the change weren’t controversial it wouldn’t have taken 76 years to decide. But it seems that after all that, another Province or an Instrument of Communion could “raise a question” which would lead to a decision about the action’s compatibility with the Covenant. And what would motivate the raising of the question? I suspect in most cases the other Province or the Instrument of Communion would raise the question in response to a petition from a dissident minority within the Province taking the action. The process of raising a question, in other words, would be used as a kind of quasi-judicial review of the action of a Province’s General Synod (or equivalent), initiated by the people who voted “no.”

Trouble is, there is no way for a Province to know in advance precisely what decisions it takes will give rise to petitions or the raising of questions. The chief criterion seems to be that someone disagrees. Imagine being pulled over on the motorway and the police officer saying that, no there are no specified rules, but another driver disagrees with the way you just made a turn.

And then there is the question of the criteria for how a decision would be made regarding whether a given action is compatible with the Covenant or not. If by now you're wondering whether the Covenant itself supplies such criteria, the answer is “no.”

And lest I give the impression that controversial actions can only be taken on the progressive side, consider the recent decision of the Diocese of Uruguay to leave the Province of the Southern Cone because the Province won’t allow the ordination of women.

The Covenant’s assurances of Provincial autonomy have been likened to telling a child that he can decide for himself whether to eat his broccoli or not, but if he doesn’t eat the broccoli he won’t get any pudding. With respect to what the rules are, the Covenant is like putting dinner in front of a child with a vague warning that he must eat properly or risk some unspecified “relational consequences”. And what does “properly” mean? Using the correct utensils (without being told what that means)? Eating the various dishes in a correct (but unspecified) sequence? Correct use of condiments (whatever that might be)? Eating the broccoli? Cleaning the plate? Stopping when full? Some unspecified combination of the above? In the absence of a clear rule, what is the poor child to do?

Let’s assume, for the sake of argument, that the various General Synods act like grown-ups: they try to make responsible decisions based on their best ability to discern what God is calling them to do in their own context, after appropriate study and consultation and prayer. The Covenant says that’s not good enough. It suggests that someone who disagrees with any decision can raise questions, and that these questions will potentially take priority over whatever process the General Synod in question has gone through. Further, the Covenant suggests that people who have not gone through the process of study and consultation and prayer will determine the appropriateness of the outcome without the benefit of the process.

Lack of clarity of what the rules are is a recipe for arbitrariness. It is a denial of the concept of the Rule of Law, the opposite of which is the Rule of Men.

Quite right, Grandmère. The Covenant is an invitation to make accusations and to meddle in other Provinces' affairs. If you provide a tool, it will be used. Paul Bagshaw warned of this several years ago.

As I have said elsewhere. The Covenant is a naive instrument. It is a document that is poorly constructed--it is a nacent constitution rather than a covenant. It is designed to control rather than create collegiality or communion.

In the debate on the Covenant at the CofE General Synod, Archbishop Williams assured the members that the Covenant had been drafted by theologians. Trouble is, it will be interpreted by lawyers. It needed to be drafted by people who knew what they were doing, if it was worth drafting at all.

Not to disparage theologians. Some of my best friends are theologians. But didn't the theologians give us the doctrine of the Trinity?

Alan , your response reminds me that thiry years ago I was a Director of a private school when the teachers formed a union. We negociated a first contract between the Board of the school and the teachers without lawyers which neither party could afford. However we did agree to show the final draft to lawyers before finally signing it. Both parties' lawyers laughed at our efforts and we had to fill in the loopholes.

That was thirty years ago and there has never been a lockout nor a strike, and seldom a grievance.

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